Adoptions are governed by the laws of each state, meaning the requirements and process for adopting may be different in Illinois than any other state in the US. However, there are a few situations where a federal law determines how an adoption must be handled. One of those laws is The Indian Child Welfare Act of 1978 (ICWA).
ICWA applies when the child is a member or is eligible for membership in an Indian Tribe. Tribal membership and eligibility is determined by each Tribe. In practice, the first step is to know whether a child has Native American or Alaska Native heritage – if so, it may impact who can adopt the child and what the court process looks like. (Please note, the terms used throughout this post are consistent with ICWA, but are not necessarily the preferred terms for an individual of Native American or Alaska Native heritage.)
If a child is an “Indian Child” as defined in ICWA, then the biological parents have additional protections even if they are not members of a tribe. Among those protections, if the parent is consenting to the adoption (agreeing to have their parental rights terminated), their consent cannot be taken within 10 days of the child’s birth. In addition, they can revoke their consent at any time before the adoption is finalized. In contrast, in Illinois, when ICWA does not apply, the consent can be taken 72 hours after birth and is final and irrevocable once given. If the Tribe finds out about the adoption (through objecting family, for example), they can intervene, even if the birth parent does not want tribal involvement. Under ICWA, if the adoption disrupts after finalization, the biological parent can seek to have the child returned to them. This is not an option in non-ICWA adoptions and means adoptive parents’ wishes for custody of the child if anything happens to them may not be fulfilled.
When the biological parent is not willingly consenting to an adoption (they are not agreeing to have their parental rights terminated or the child has been removed by DCFS), there are certain steps that must be followed in placing the child with a foster or adoptive family. Generally, a child must be placed within their own tribe or with another tribe before a non-native caretaker can be considered. If a child welfare agency does not consider native families first and cannot show good cause as to why, the child may be removed from a placement even if the child has established relationships with their foster family. Not following the required placement considerations can come up at any stage of the process, whether immediately following placement or years down the line.
In addition, in situations where Indian children are removed from parental care, the tribe must be notified. The tribe or the biological parents can require that all additional proceedings occur in a tribal court. The transfer to tribal court will occur unless a biological parent objects. No matter whether the matter proceeds in tribal court or a circuit court, ICWA must be followed. If ICWA applies, it is harder to terminate parental rights due to abuse or neglect – a higher burden of proof and expert testimony that remaining in the care of the parent or Indian caretaker “is likely to result in emotional or physical damage to the child” is required.
If you are fostering or adopting a child and believe they could be of Native American descent, it is important to follow up with the caseworker or agency as soon as possible. If this information is discovered at the end of the adoption process, ICWA still applies and may result in the removal of the child no matter how long they have been in the home. This information years down the line may cause more emotional trauma on the child and adoptive parents. In addition, it is important that the child have the best opportunity to remain with their tribe and establish roots with their heritage. For children of Native American or Alaska Native descent who were adopted, ICWA provides that once they turn 18, they can request information about their biological parents and their tribal affiliation from the court where the adoption occurred.
Finally, although there is limited guidance on this novel issue, individuals looking to grow their family through assisted reproductive technology, specifically egg, sperm, or embryo donation, should be aware of the possible overlap with ICWA. In cases where an adoption is necessary to solidify parental rights (such as of a same-sex couple with the non-biological parent adopting), if the donor was of Native American or Alaska Native descent, ICWA and its requirements may be triggered. As such, whether the donor is of Native American or Alaska Native descent should be addressed in any donor agreement.
If you have questions or concerns regarding a foster placement, adoption, or assisted reproduction agreement, please give us a call at 312-539-8535.
